Thursday, April 01, 2010

Pressler Lawsuit Settled

Duke has settled its lawsuit with former lacrosse coach Mike Pressler. Having tried (and failed) to get the case thrown out before discovery, the University had little choice--I can't imagine the discovery in this case would have been pleasant.

Here is the statement the University released to accompany the settlement: "Coach Michael Pressler is an excellent coach. He did a great job building the Duke men's lacrosse program, while maintaining a 100 percent graduation rate in his 16 years. Duke University regrets any adverse consequences that the Newsday or AP article had on Coach Pressler or his family. Duke wishes nothing but the best for Coach Pressler in his future endeavors, especially at Bryant University and as he leads Team USA in the World Lacrosse Championships."

20 comments:

AFAIK, it has never apologized either to Pressler, for firing a veteran coach of 16 years' standing without giving him so much as a hearing on the merits (nor even a joint meeting); or to the team, for canceling their (possibly championship) season.

I suppose the BOT will maintain their usual silence (although as trustees, they are obligated to report to the beneficiaries of the trust how they handled the trust's funds--and answer whether it would have been wiser to fight the suit through to the end or settle).

The beneficiaries might also want to know how and why the suit came about, and what responsibility the trustees had in any of it.

(Theoretically, the trustees could be made to repay legal defense costs and the costs of any settlement, if their own wrongdoing caused the trust to be sued.)

Congratulations to Coach Pressler for standing up to the bullying power of the Duke administration.

It would be interesting to know, K.C., whether you believe this case provides some insight into the likely outcome of the player's lawsuits (e.g. Duke's initial claims to defend vigorously through court, followed by a judicial determination that discovery could proceed, followed by a quick offer by Duke of a settlement).

Terms of the deal were undisclosed, but Duke's advisory included a statement from Burness' successor, Vice President for Public Affairs and Government Relations Michael Schoenfeld.

It read, in full: "Coach Michael Pressler is an excellent coach. He did a great job building the Duke men's lacrosse program, while maintaining a 100 percent graduation rate in his 16 years. Duke University regrets any adverse consequences that the Newsday or (Associated Press) article(s) had on Coach Pressler and his family."

"Duke wishes nothing but the best for Coach Pressler in his future endeavors, especially at Bryant University and as he leads Team USA in the world lacrosse championships."

Schoenfeld added that the university "will have no additional comment on this matter."

Pressler lost his job at Duke in April 2006, at the height of the controversy triggered that spring by exotic dancer Crystal Mangum's false allegation that she'd been raped by members of the lacrosse team at a team party.

He and the school negotiated an out-of-court settlement the following spring, but it came unglued after Burness made comments to the AP and Newsday, a New York City-area newspaper, that Pressler felt demeaned him.

Pressler sued for breach of contract, later converting the case into a slander claim. He contended Burness had drawn unflattering comparisons between him and his successor, current coach John Danowski.

Duke tried to get the suit thrown out of court in favor of a turn to arbitration, but a Superior Court judge and eventually the N.C. Court of Appeals ruled that Pressler was entitled to have his case heard.

Another judge, Gary Trawick, in January ordered the two sides to begin exchanging evidence. He gave Duke until Feb. 26 to open its files on Pressler and the lacrosse case, and Burness until April 16 to sit down for a deposition.

Trawick barred lawyers from sharing what they learned with third parties -- an order that came after Duke's attorneys said they didn't want information relayed to players on the 2005-06 lacrosse team who have filed civil-rights lawsuits against the school.

Pressler was hired as coach of Bryant University's lacrosse team in the fall of 2006. The Rhode Island school was then a Division II lacrosse program. It has since moved up to Division I, the same tier as Duke.

Is it possible that a major donor or donors (or a majorly concerned donor or donors) could initiate a legal action to find out how much that settlement actually cost Duke University -- and therefore those who gave money to Duke?

It must make the donors pleased as punch to see their generously given cash go to pay a bunch of legal judgments that never would have happened if the Duke administration had acted ethically in the first place.

This mutually agreed upon settlement can't simply consist of Duke's brief and essentially unreported statement, there has to be an accompanying monetary amount, at least we should expect so. I hope Pressler received seven figures. Perhaps future events can provide a little more info on this, to Duke's detriment.

"Is it possible that a major donor or donors (or a majorly concerned donor or donors) could initiate a legal action to find out how much that settlement actually cost Duke University ..."

Trust money overseen by trustees does not belong to them; it belongs to the beneficiaries (in this case, the students) and the stakeholders (alumni and donors).

They are permitted to use trust funds for legal defense of their actions as trustees--provided their actions were not reckless or wrongful. In the latter case, they would have to pay for their own legal defense.

In Britain, a trustee of a charitable trust generally has to first obtain the permission of the court to use trust funds for his own legal defense. The court has to weigh the likelihood of a successful defense, and also take into consideration of the views of the trust's beneficiaries.

It is absurd to claim that the trustees of a charitable trust could spend upwards of $50 million (estimated cost so far of the Duke suits) without having any responsibility to report the details to the beneficiaries of the trust; or to

explain why settling for large sums of money was better than taking the issues to trial;

and whether such expensive outside lawyers, like Jamie Gorelick, were really necessary.

If they fail to account for their use of the trust's money, it is fair to request the Attorney General to investigate the trustto determine if the trustees have violated their fiduciary duties of oversight.

It is also possible for the IRS to impose penalties for "excess compensation", if the BOT has paid millions for the defense of individual board members, using Duke funds, when those board members are being sued in part because of their own wrongful actions.

(No trustee can claim that it is part of his job description as a trustee to conspire against his own beneficiaries; or to conceal an attempt to frame some of his beneficiaries for crimes they never committed.)

-Flashback- “Mike Pressler, the former head coach of the Duke University lacrosse team and the only university employee to lose a job over the scandal.”

Good article excerpts:Pressler worried that his departure and the cancellation of the season would essentially announce to the world that the university believed the players were guilty. He hastily arranged a meeting with the team.

"Someday," he continued, his voice cracking, "we will have our day. Someday, I will tell the world the truth. I promise you." Pressler moved to the doorway; one by one, he hugged his players goodbye, whispering encouragement as he blinked away tears.More at: http://tinyurl.com/yko2ttu

"This mutually agreed upon settlement can't simply consist of Duke's brief and essentially unreported statement, there has to be an accompanying monetary amount, at least we should expect so. I hope Pressler received seven figures. Perhaps future events can provide a little more info on this, to Duke's detriment."

We'll never really know since part of the settlement is that no one talks about it.

IANAL but we can run an accounting experiment...the key word is "damages." Duke wrongfully damaged Pressler, those damages are quantifiable in salary dollars and Duke will compensate him for it.

Think of it like a fault divorce; Duke is probably paying some large fraction of the difference between Pressler's Duke salary and his Bryant salary. They'll probably pay it over a decade of presumed employment, or the length of time he plans to continue coaching, or somesuch amortization.

Duke will also bring up mitigating factors; they could argue that Pressler's appointment as national team coach indicates he was not really damaged by the termination and is entitled to less money.

Seven figures? Probably not for the lost salary, but when the slander is added in maybe more money comes out.

In any case, the phrase "it's not about the truth" probably damned Duke to whatever Pressler's lawyers wanted to ask for. There's no way Duke wanted to go into discovery to reveal what the University knew and when it knew it. Serves them right.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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